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Law & Literature


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Law and Violence


Christoph Menke
Published online: 19 Dec 2013.

To cite this article: Christoph Menke (2010) Law and Violence, Law & Literature, 22:1, 1-17

To link to this article: http://dx.doi.org/10.1525/lal.2010.22.1.1

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Law and Violence*
Christoph Menke

Abstract. The relationship between law and violence is paradoxically structured: law is the opposite
of violence, since legal forms of decision-making disrupt the spell of violence generating more violence.
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At the same time, law is itself a kind of violence; because it imposes a judgment that determines
its subject like a curse. This article reads tragedy (notably Aesychyluss Oresteia and Sophocles
King Oedipus) as articulating this paradoxical entwinement between law and violence and uses this
tragic insight for a critical discussion of Benjamins Critique of Violence.

Keywords: law, violence, vengeance, subjectivity, tragedy; Aeschylus, Sophocles, Benjamin

Every attempt at defining the relationship between law and violence must
start with two tensely related, if not blatantly contradictory, premises. The
first states: Law is the opposite of violence; legal forms of decision-making are
introduced to interrupt the endless sequence of violence and counterviolence
and counter-counterviolence, so as to exorcise the spell of violence generating
more violence. The second premise states: Law is itself a kind of violence; even
legal forms of decision-making exert violenceexternal violence that attacks
physically, as well as inner violence that hurts the convicts soul, his being. Le
gal interpretation takes place in a field of pain and death.... A judge articulates
her understanding of a text, and as a result, somebody loses his freedom, his
property, his children, even his life.1 In these two statements, the laws hostility
toward violence and its own violent character confront each other: laws claim
to put an end to the savage violence of the state of nature of externally
lawless freedom2 and the violence by means of which law enforces this claim.
The problem of law and violence is the problem of the relation between
these two statements. This problem is a paradox, a confusion of thought (and
of passions). It is a problem that we cannot solve in favor of either side: both

Law & Literature, Vol. 22, Issue 1, pp. . issn 1535-685x, electronic issn 1541-2601. 2010 by The
Cardozo School of Law of Yeshiva University. All rights reserved. Please direct all requests for permis
sion to photocopy or reproduce article content through the University of California Presss Rights and Per
missions website, at http://www.ucpressjournals.com/reprintinfo.asp. DOI: 10.1525 /lal.2010.22.1.

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statements contradict each other, but both are trueneither can be denied.
Thus, accepting the truth of both statements is the first step toward doing
justice to the problem of law and violence. At the same time, this step is not
taken in many philosophical analyses. These two statements on law and vio
lence have resulted rather in views that confront each other not only through
ignorance but because of lack of understanding. On the one hand there are the
discourses of the legitimation of law, according to which legal verdicts are justi
fied verdicts and thus, no matter how harsh they may be for those sentenced,
they are not violent. For violencein the relevant sense of the termis not
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the same as restriction or even violation. Violence is a restraint or violation


imposed by somebody on somebody against their will. But if the legal verdict
is justified, it is valid also for the person sentenced, and insofar as it is not
against her will, it is not violence. On the other hand, there are the discourses
of the critique of law: legal verdicts are enforced by exerting or threatening
violence. There is no lawand this holds also for post-sovereign law that
has given up on the cruel celebrations of punishment and torturethat does
without violence. Even the justification of the legal verdict does not change
this: neither the legitimation by (just) purposes nor by (conventional or fair)
procedures can free law from its violence. Law, so its critics say, does not show
a way out of violence; it only continues it in a different way.
Since the debate with the Sophists, philosophical legal thought has been di
vided into discourses of legitimation and of critique. For this reason, philosophi
cal discourse is not a good starting point for understanding the problem of law
and violence. Such an understanding demands a grasp of their paradoxical en
twinementit is necessary to accept the truth of both statements, to let oneself
be dragged in both directions. This is how tragedy, before philosophy, discloses
the relationship between law and violence: the tragic conception of law brings
the truth of both statements to the fore (I.III.). One can further determine the
insight into the relationship between law and violence, which is thus articulated
in tragedy, by comparing it to Walter Benjamins critique of law (IV.V.).

I.

Philosophical discourses of legitimation oppose law to the violence of the


state of nature, where everybody is free to do anything. This philosophically
invented state of natural violence is fictitious, and the same is true for the

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Menke Law and Violence

philosophical legitimation of law as its remedy. Tragedy, on the other hand,


presents violence, which law claims to overcome, not as the effect of lawless
arbitrariness but, on the contrary, of an order of iron necessity: law, as ex
pressed through the realism of literature, emerges by objecting to the violence
of revenge. Revenge is not arbitrariness, for revenge strikes those who deserve
it. Revenge follows the law of equality, in that revenge is the payment of like
for like: the wife murders her husband for the sacrifice of their daughter; in
return, the son murders his mother, for which he is haunted by the goddesses
of revenge. Revenge is not violent because it is unjustified. Rather, revenge is
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justified in giving an answerand thus by what it gives an answer to.

Chorus:
[...]
For gods arent blind to men who kill.
In time, black agents of revenge,
the Furies, wear down and bring to nothing
the fortunes of a man who prospers
in unjust ways. They wear him out,
reverse his luck, and bring him at last
among the dead. Theres no remedy.3

It is precisely the equality of revenge, its justification, that includes its vio
lence. The deed of avenging answers the deed avenged by repeating it (Ich
denke, da muss noch ein Komma hin); the avenging deed is like the avenged
deed. Being equal to and thus justified by the first avenged deed, the second
avenging deed is as partisan and violent as the first one was. Thus, for each
avenging deed there must in turn be an answer that does to the avenger what
he has done in avenging. As revenge executes the law of like for like, it goes
on and on. Every avenging deed, notwithstanding its being justified by giv
ing an answer to a previous violation, is of the same nature as the violation
it answers. Justification and the violence of revenge are insolubly connected:
revenge is measure for measure and at the same time it is an excess, which then
again requires a further deed as its measure. There is (as Clytaemnestra says)
madness in revenge; for in revenge we are driven by the same urge against
which we react: the urge we have to kill each other (Agamemnon, 157576).
This is why each act of revenge entails its interminable self-perpetuation.
Law breaks with the violence of revenge by interrupting this merciless
logic of the same, and thus an endless repetition, by the definitive character

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of its verdict. The legal verdict, even legal punishment, does not continue the
violence of ever identical answers. For the legal verdict does not answer a
violation by repeating it. A legal judgment is not an equal deed but the deed
of equality.
The sentence of revenge says: According to the rule of like with like, the
murderer of the husband must suffer from the same violation as she has com
mitted. That is why also the son, who passes the sentence of revenge and
avenges his fathers death, must himself suffer the same violation he has com
mitted against his mother. The judgment of revenge states: The violator has
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to be violated in turn. To this Athena objects: Ive heard/ only one half the
argument. (Eumenides, 42829) Athenas clever objection against the god
desses of revenge is that unknowingly they always pronounce two verdicts
that are mutually exclusive. For, precisely as the deed is a violation that must
be avenged by re- or counterviolating the perpetrator, this deed itself already
was a counterviolation to a previous violation. The goddesses of revenge
overlook, as Athena also states, that there are two sides to this dispute (id.).
They see each side separately and one after the other, but they cannot see both
at the same time. Thus, for Athena the equality of revenge is a sham justice.
You wish to be considered righteous,/ but not to act with justice (id. at
43031), she says to the Furies whose office is to hound out of their homes
all those who kill (id. at 421). The act of revenge justifies itself by claiming
to do the same once again, without recognizing that this already was true of
the first deed. This is the blindness of revenge, which is why it must go on
forever.
Law, on the other hand, overcomes the violence of revenge, because it is
able to recognize that there are two sides. (That is also why tragedy is the
genre of law: The history of tragedy started when [the] number of actors
was increased from one to two by Aeschylus.4 This way in tragedy, just as
in the legal court, two sides can be present at the same time.) Thus contrary
to revenge, law judges impartially: The legal verdictas Athena statesis
made by a tribunal that will rule fairly in this case,/ bound by a sworn
oath to act with justice (Eumenides, 489). Even more important, however, is
what enables the law to judge this way: what is needed is a category change,
a change of the concept of judging. Revenge only knows violations commit
ted by one against the other; thus it is itself a violation committed against the
other. Law, on the other hand, is able to judge impartially because it judges
the deeds of individuals in the light of general rules: considered legally, deeds

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Menke Law and Violence

are not violations of somebody by somebody else but violations of laws. They
are what legal judging is based on.5 Legal judging derives its conclusory jus
tificationits claim to make an end to the matterfrom the application of
general rules. No matter how much legal judging, and even more so legal
punishment, violate, this violence is notlike the deed of revengeequal
to the violation against which it is turned. Legal judging is different from all
other violence; it is indeed the other of violation because it applies a general
law. Legal judgment and punishment bring the violence of revenge to an end,
for what speaks through legal judgment and punishment is a law that is the
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same for all.

II.

The Oresteia confirms the laws overcoming of revenge by the metamorphosis


of the Furies into the Eumenides, the goddesses of revenge into the kindly
ones (Eumenides, 8811047). The credibility of the institution of law being
able to effect such transformation did not last for long. Euripides rewriting of
the third part of the Oresteia in his Orestes undermines the clear-cut opposition
between revenge and law that organizes the sequence of events in the Oresteia.
Euripides play is set prior to Athenas court procedure, which here is only an
nounced at the end by Apollo from heaven (or from the machinacraneof
the theatre). But this is in Euripides not a time of mere revenge, without law
and legal proceedings. Rather, in Euripides narrative the orders of revenge
and of law coexist; they even overlap and cross-fade. Thus Orestes, the mur
derer of his mother, is haunted by the ghosts of revenge:

Mother, Im begging you, dont threaten me,


not those young snake girls with their bloodshot eyes.
Theyre here! Theyre closing in to jump on me!6

But this threatening power of the Furies is just the other side of the threat of
the imminent legal trial to which the city of Argos will put Orestes and Elektra
for their deed (Today therell be a vote against us, a vote [for] death by
stoning by all citizens (id. at 514, 51617)). From Orestes perspective, the
threat of revenge by the Furies speaking in the name of the slaughtered mother
and the threat of legal sentencing by the assembly of the citizens of Argos are
the same. And thus to shed the one here means to shed the other as well: In

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Euripides, its no longer the institution of law that breaks with the violence of
revenge, but rather the intervention of Apollo whose promise to Orestes that
[the] gods who on the Hill of Ares judge your case will act righteously
theyll divide their votes, and from that its certain you will triumph (id. at
199297) breaks with the order of revenge and of the law of the city at the same
time. For to Apollo, as to Orestes, these two appear the same: to Apollo as
equally inferior, to Orestes as equally violent. To Euripides Orestes the claim
of law to be categorically different from revenge has become unintelligible; it
is supplanted by the phenomenal evidence of their similarity. For, as a matter
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of fact, both law and revenge, the violence of legal punishment and of the act
of vengeance, look the same. Their difference is amerelyformal one, a
difference in the form of judging. From the point of view of the one facing the
threat of legal sentence, its formal difference from an act of revenge loses its
force. Law and revenge, though formally different, in practice appear alike.7
This is one way in which tragedy after the Oresteia has reflected on the
failure of law effectively to overcome the violence of revenge: In Orestes
experience, law, despite its formal, which is to say essential, difference from
revenge, appears as violent as revenge. In a more fundamental way, however,
violence also returns in the realm of law precisely because of the new way of
judging by which it breaks with the violence of revenge. This is indicated by
Orestes when he answers Menelauss question about the nature of the sick
ness that is destroying you by saying: Its herein my mind [my con
science in Coleridges translation]because Im aware Ive done something
horrific (id. at 45455). Here Orestes redescribes the violence inflicted upon
him by the Furies as a violation he inflicts upon himself. This violence stems
from, indeed it consists in, his self-knowledge: in the knowledge that he has
done something horrific. A common reading has interpreted this reference
by Orestes to his self-consciousness as a first step toward a modern psy
chology of the self. However, when Orestes says: Im aware Ive done some
thing horrific (or, as Coleridge makes him say: I know that I am guilty of an
awful crime) and when he experiences such self-knowledge as the sickness
to which he has subjugated himself, then Orestes is first of all quoting that
original act of self-condemnation by which Oedipus fulfills his tragic fate.
But in King Oedipus, this destructive act of self-condemnation is precisely the
moment when the violent nature of the new legal form of judgment comes to
the fore: in Oedipuss experience, violence resides in the legal form itself by
condemning him to a self-destructive self-condemnation.

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Sophocles text grasps this in the experience that the verdict of law is effec
tive as a curse; the violence of lawas Plato puts itis the curse of the law.8
Both Sophocles and Plato explain the cursing power of law by distinguishing
it from a threat. A threat is directed at a persons desires and fears, and en
ters their calculations as to how to achieve what is desired and prevent what is
feared. A curse is instead something that one suffers (Oedipus, 251), some
thing by which one is hit immediately and without the mediation of further
considerations. In being cursed, the addressee becomes somebody who, with
out having decided to do so and thus without having any possibility of acting
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differently, can only act in the way determined by the curse. One who is hit by
a curse is bereft of the subject status that is presupposed by a threat. According
to Oedipuss experience, this is also what makes the violence of law: law de-
subjectivizes, for its verdict overdetermines the one it hits. Precisely because
for the sake of being impartial legal judging is anonymous, is not a deed by an
individual but by law itself, its effect cannot be stopped by anybody.
Sophocles radicalizes and explains this thesis by showing what makes law
have the effect of a curselike de-subjectivization: According to Sophocles,
law de-subjectivizes precisely because it demands that the perpetrator judge
himself. Law curses the perpetrator to sentence himself. That is: under the
rule of law, one must sentence oneself, and it is precisely this self-sentencing
under the rule of law that is similar to a curse. It is a self-imposed verdict on
oneselfnobody other than Oedipus condemns him for murder and incest,
and nobody other than Oedipus sentences him to blindness and exilebut
one is therefore precisely not free in sentencing oneself. More than that, Oe
dipus will never again be free from his own sentence. One stays imprisoned
forever by the self-sentencing to which one is cursed by law; precisely because
it has been ones own deed, nothing can pardon it. By being forced to sentence
himself, Oedipus is held captive by the question of his guilt and walled in by
the prison of his self-consciousness.
This is Oedipuss experience: the experience that in lawthus in a new
place, namely, in the subject invented by lawthe power of the curse returns,
against which law, as the beginning of King Oedipus shows, had been estab
lished. Oedipus starts with a reminder of the ancient ritual practice of cleans
ing the pollution (miasma) of the community by a sacrifice. Within these
rituals rules the power of the curse: As the victim, the scapegoat, has nothing
to do with the deed, she experiences her being sacrificed as an external, fate
ful violence. Law, represented by the character of good King Oedipus as a

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legally proceeding judge, wants to break with this. But as law, whose execu
tive, or founder, is Oedipus, condemns him to sentence himself, it is precisely
that power that was ruling prior to law that returns by and in law itself. Law
makes the subject the stage of the verdicts cursing power: the subject is no
longer only the verdicts victim (like the scapegoat of the ritual); the subject is
also the verdicts authority; the subject appropriates the legal verdict and thus
makes himself the property of law. He is identified by the legal verdict.
The return of violence, the relapse to the curse, happens in law precisely due
to that which makes the form of its judging different from revenge. It is within
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the general law, in whose application the legal verdict consists, that its violence
rests. By being spoken in the name of the law, the legal verdict becomes impar
tial; this makes the categorical difference between the legal judgment, which
by leading to punishment is also always a violation, and the counter- (or re-)
violation of revenge. For legal judging in the name of the law sees both sides.
That is why the legal verdict, contrary to that of revenge, must also be made by
each side itself. Thus, law demands of him whom it judges, even him whom it
condemns, that he judge himself accordingly.9 This, and only this, constitutes
the legitimacy of law, which makes it different from revenge. However, it is
precisely this same reference to self-judgment that defines the legitimacy of the
legal verdict and marks the return of pre-legal violence in the law. For the judg
ment that the subject passes on himself grasps him like a curse and will never
again release him. The violence of the legal is that of subjectivity.

III.

Tragedy gives a double-faced, paradoxical image of law.


First, by the form of its verdict, law is categorically different from revenge;
indeed, it is its opposite. Even if law appears as violation, by its form, that is
its essence, legal judging is not only a counterviolation, as revenge is, that is
like the avenged deed. Legal judging is of an essentially different nature than
the judged deed. Legal judging is impartial, since it is passed in the name of
a general law that sees both sides and thus is equally valid for both sides. Al
though legal judgment, especially when leading to punishment, is always also
a violation of the one who is judged and punished, it is a violation that follows
from a law, which is also valid for her, as it takes her into consideration; that is,
it is a violation she would also have to inflict on herself: justified violence.

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Second, the fact that violence does not disappear by law and that law is thus
not nonviolent is trivial; for exerting violence, at least threatening it, belongs
to the definition of law, as a violation that is justified by its legal form. How
ever, this triviality of definitionbecause law is justified violence, law is vio-
lenceis not a triviality of thought. That law, because it is justified violence, is
violence, is not the formula of a solutionas the philosophical discourses of
the legitimation of law believe10but of a problem, even a paradox.
Euripides Orestes articulates this paradox of law as its experiential indistin
guishability from revenge: to one threatened by or indeed subjected to a legal
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sentence, law and revenge appear alike. The formal difference of law does not
here disappear, but it is perceived as being merely formal; in fact, the for
mal difference of the legal judgmentits claim to impartiality by reference
to a universal law recognized by both sidesis experienced as merely the
external disguise of its violent enforcement of a partisan position. Thus law
appears, for example, as class or victors justice. Here, the two elements that
together define law as justified violence become separated. The evidence of
the violence of law eclipses, even suppresses, the knowledge of its formal dif
ference that justifies its judging and punishing. The formula Law is justified
violence is the formula of a problem, not of a solution, as it is structurally
unstable; its two elements stand in a relation of tension, for the justified vio
lence in law can always become indistinguishable from the violence before the
law and thus unjustified.
Sophocles Oedipus deepens the experience of the paradox of law, because
here violence is no longer the opposite of law from which it can become indis
tinguishable in appearance; violence is lurking also within the legal form itself.
This is not the violence of the effects of lawthe violations it produces
but of how it works: the curselike violence by which the verdict grasps the
convicted and overdetermines him, the violence of losing ones subjectivity
precisely by enacting it. This ancient violence of the curse is thus exerted by
law in a new way: the curselike violence of legal judging is due to the fact that
its legitimacy, by which it overcomes revenge, demands the convicts self-
sentencing; the violence of law is the curse of self-sentencing. In this way,
law loses the power that made it different from revenge: the power to stop
the endless chain of violationto delimit violence. As Oedipus experiences,
the efficiency of the legally imposed self-judgment is infinite, for since it is
enacted by the subject himself, the subject lacks the capacity to release himself
from its identifying power.

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I V.

That the concept of law entails the idea of justified violence and that this is the
formula of a problem, not of a solution, is the starting point of Walter Benja
mins considerations in his Critique of Violence.11 Benjamin distinguishes two
ways of understanding the legitimacy of legal violence, by way of natural and
of positive law. The first derives the justification of violence from laws just
purposes, the second from its procedures. Both, however, agree on a com
mon basic dogma: just ends can be attained by justified means, justified means
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used for just ends (Critique, 278). With respect to law and its violence,
however, justified means on the one hand and just ends on the other stand
in irreconcilable conflict (id.). Legally exerted violence is irreconcilable
with the purpose of just judging. But this is not because violence is gener
ally unjustified: the critique of all legal power, unless one is prepared to
proclaim a quite childish anarchism, cannot be achieved by refusing to
acknowledge any constraint toward persons and declaring What pleases is
permitted (284). The violence of law cannot be criticized in the name of a
formless freedom (285). For the violence of law does not reside in the fact
that it restricts and that this restriction is enforced also by way of threats and
violations. Rather, the violence of law is violence crowned by fate (286);
the violence of law is due to its working aslikefate. Another of Benja
mins ways of putting this is by saying: Law is mythical violence (29495).
Benjamin explains this as follows:

For the function of violence in lawmaking is twofold, in the sense that lawmak
ing pursues as its end, with violence as the means, what is to be established as
law, but at the moment of instatement does not dismiss violence; rather, at this
very moment of lawmaking, it specifically establishes as law not an end unal
loyed by violence, but one necessarily and intimately bound to it, under the title
of power. Lawmaking is power making, and, to that extent, an immediate mani
festation of violence. Justice is the principle of all divine end making, power the
principle of all mythical lawmaking.12

The problem of the legitimation formula Law is justified violence does not
lie in the fact that law is established and enforced with the help of violence, thus
not in the fact that law uses violence as a means, but rather in the fact that, with
law, violence does not stay a sheer means,13 that it is not dismissed, but spreads
to the purpose of law itself. According to Benjamin, the violence of law, which

10

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Menke Law and Violence

for this reason is called fateful, is due to laws violent means concealing its
just purposes because its self-preservation becomes its only purpose. Law is
about power, its own power.
With Benjamin one can thus distinguish between two meanings of legal vio
lence: the violence of violation and the violence of fate. The violation by law
is lamentable, for it causes suffering. However, it may be justified, according
to Benjamin, even as a violation of life. In contrast, law as mythical, fateful
violence is always reprehensible, for it follows from the manner of laws func
tioning: the fateful violence of law consists in the acts of legal judgment and
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punishment being transparent for no other purpose than the sheer preservation
of laws power to judge and punish. This is what makes the violence of law
reprehensible: not that law also threatens, violates, and coerces but that law
is effective only for its own sake, for the sake of keeping up its own order, of
establishing and enforcing its own categories, perspective, and languagefor
the sake of its power. The fateful violence of law lies in its self-preservation,
the endless repetition of itself.14 The critique of law in Benjamin thus does not
refer to what law does, the violation and coercion that is also done by legal
judgment and punishment. Rather, the critique of law refers to how it operates:
as a mechanism of self-perpetuation, enforcing for the sake of enforcing.
Benjamins elucidation of the violence of law as its fateful mode of opera
tion now also allows for a more precise formulation of the way in which trag
edy experiences law. Thus the violent nature of law, which makes it appear
to Oedipus as a curse, is not due to the terrible act that it orders him to inflict
upon himself, but to the way in which it hits him: it hits the pursued com
pletely, in his being, for law hits him through him hitting himself. Law does
not only judge something, it wants the perpetrator to sentence himself. This
is the idea of subjectivity that is inscribed into law. Paradoxically, ironically, or
fatefully, this program of granting the subject the authority of self-judgment
under the rule of law ends with the subject being completely saturated with
law; no difference shall remain. Like fate, law asserts itself completely.
Moreover, with Benjamins illumination of the mythical character of law,
Orestes experience that law is like revenge can also be understood as not just
referring to the appearance of law, but rather to its very form of judging. For the
violent nature of law, which makes it appear to Orestes as a mere counterviola
tion indistinguishable from revenge, is not due to its being a counterviolation,
to legal judging and punishment also being a violation of somebody, but to
its being a counter- and thus a re-violation:15 law is indistinguishable from

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revenge when it appears as if it was only about passing its sentence and im
posing its punishmentjust as the first violation immediately raises the blind
urge (as Clytaemnestra said) to revenge it by repeating it. One kills her
husband and thus must be killed by her son, like with like. Something has
happened, and law must take sides, must sentence and punish; the deed is per
secuted by the law with the mercilessness of revenge. Thats what is fateful
about laws violence: it works just because it must (or can).
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V.

Benjamins concept of fateful violence helps to obtain a more precise formu


lation of the tragedy-experience of law. But this is also true vice versa: the
tragedy-experience of law helps to obtain a more precise understanding of
Benjamins concept of fateful violence, for it allows for a critical distinction
between two different ways of understanding it. This distinction refers to the
normative consequences that follow from the insight into the violent charac
ter of the laws new way of judging.
Benjamin sees in laws violence crowned by fate what it has in common
with those forms of judging that precede law and that law promises to replace,
the judgment of revenge and the judgment as curse. That is what Benjamins
philosophy of history of violence is aimed at showing: from its perspective,
laws claim to be the opposite of revenge and curse appears as illusory (or even
ideological). Law is not the end or other of fate; this end of fate is still to come.
Law is just a further period in the mythical epoch of fate. The central critical
term of Benjamins essaythe term mythical or fatefulneither intends
nor allows for a distinction in form between the modes of judgment in revenge
and in law. This disregard of the difference between revenge and law and their
identification as phases of the same mythical age is questioned by the tragic
experience of law. Tragedy does not exhibit the fateful or mythical essence of
law but its essentially paradoxical constitutionin terms of process: the laws
turning into its opposite. Law first breaks with revenge and curse by establish
ing a new form of judgment: the impartial judgment of applying a general rule.
Against itself, this new kind of judging then acquires a fateful power that is like
that of revenge and curse. Thus, in the experience of tragedy, law is not mythi
cal violence like revenge and curse; rather, precisely by (way of its) breaking
with the mythical violence of revenge and curse, law re-establishes it.16

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Menke Law and Violence

It could seem to follow from Benjamins philosophical-historical construc


tion of a unitary mythical epoch, comprising revenge and law alike, that put
ting an end to the age of fate and its violence requires also the destruction of
the rule of law. On this decisive act of rupture Benjamin writes:

On the breaking of this cycle maintained by mythical forms of law, on the sus
pension [Entsetzung] of law with all the forces on which it depends as they de
pend on it, finally therefore on the abolition of state power, a new historical
epoch is founded. (Critique, 300).
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However, by law, as tragedy experiences it, breaking with fate and relapse
into fate are paradoxically combined; for both, the break with fate and the
relapse into fate are two sides of the same: the new legal form of judgment.
Thus breaking with law will always mean breaking with laws own break
ing with fate too, hence a relapse into fate. One cannot break with the fate
ful violence of law without at the same time breaking with that which is the
other of fate in law. The route to a destruction and eventual overcoming of
law that Benjamin seems to indicate is as closed as the sedulous denial of the
paradoxical entwinement of violence and law by the philosophical discourses
of legitimation is an unconvincing alternative.
In the German original, however, Benjamin does not speak of the suspen
sion of lawas the English translation, following Carl Schmitt, does17but
of the laws Entsetzung. The German term Entsetzung has a double meaning
that sets Benjamins Entsetzung of law clearly apart from Schmitts idea of its
suspension. For Entsetzung means both to depose someone from an office
or honor and to lift the military occupation of a town or fortress.18 Entsetzung
of law thus means that it is deposed from the office it currently occupies, and
at the same time released from a power besieging it. Since the current office of
law is nothing but the power to preserve and execute itself, the power besieg
ing the law and the office from which it is deprived turn out to be the same.
In its Entsetzung law would be freed from itself: while the suspension of
law in Schmitt means to temporarily dissolve the exercise of power from its
legal restrictions, the Entsetzung of law in Benjamin on the contrary aims at
the annihilation of its historic function of making and preserving (its)
power (Critique,29697). Thus the Entsetzung of law in Benjamin precisely
does not require the abolishment of law; how could law be abolished, after all,
without relapse into the violence of revenge and curse? Rather the Entsetzung

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of law, the annihilation of its historic function, requires a different way


of enacting law. This would have to be a way of enacting law that preserves
its categorical difference from revenge and curse, and at the same time deposes
or liberates it from its office of making and preserving power. Is there such a
different way of enacting law?
In his essay on the tenth anniversary of Kafkas death, Benjamin defines
a law that is deposed of its historic function of power as a law which is not
practiced anymore but is only studied.19 In Giorgio Agambens interpreta
tion of this formula, a law that is no longer applied but only studied is a law
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that no longer judges.20 But the end of judging is possible only where there are
no longer violations that must be rejected, and no longer conflicts that must be
resolved. The end of legal judging is possible only where the law is no longer
opposed to life because life is no longer opposed to the law. This opposition
between law and life is the mark of laws normativity: law must judge since
life is not (yet) like the law commands. If it is thus for the time being impos
sible to study or read the law instead of applying it in order to judgebecause
life opposes the law and thereby solicits the laws opposition against itthe
question Is there another way of enacting law? becomes the question of
whether and how it is possible to judge differently: to judge without triggering
fate. The question that the experience of law in tragedy raises is: Can there
be an Entsetzung of law of its own mythical, fateful power without stripping
law of its normative capacity to judge? Can there be a legal order that, while
judging, does not operate, like fate?
In the light of this question, a basic trait of the specifically modern idea
of legality might gain a new significance. This trait is indicated in Kants
definition of rightful (or legal: rechtlich) legislation: Duties in accordance
with rightful [rechtlich] lawgiving can be only external duties, since this law
giving does not require that the idea of this duty which is internal, itself be the
determining ground of the agents choice.21 Legal legislation is defined here
by its restriction: it is defined by what it does not do. Legal legislation does
not demand to become internal; it limits itself to the external. This act
of self-limitation of modern law is all the more significant since, on the other
hand, modern law also radicalizes laws claim to legitimacy by grounding it
self in the autonomous will of its subjects: modern law derives its legitimacy
from the claim that its sentences only execute those judgments that its subjects
pass upon themselves. Thereby, modern law is split between grounding the
law in the subject and thus integrating the subject into the law and setting the

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Menke Law and Violence

subject free from the law by delimiting the law opposite the subject. (Thus
also the subject of modern law is split between being the ground and the other
of lawbetween freedom as autonomy and freedom as arbitrariness.) We
can read this split in modern law as its answer to the tragic experience of the
relapse of law into mythical, fateful violence. The answer of modern law to
tragedy is to re-enact tragedy in itself.22
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* This text is a revised version of my contribution to the Festschrift for Gunter Teubner. I thank Peter
Goodrich, Alastair Hunt, Ross Poole, and an anonymous reviewer for comments and suggestions
and Kevin Temple for his help in revising the English translation by Robert Wittwar.
1. Robert Cover, Violence and the Word, in Narrative, Violence, and the Law, ed. Martha Minow et al.
(Ann Arbor: University of Michigan Press, 1992), at 203.
2. Immanuel Kant, The Metaphysics of Morals, in Practical Philosophy, trans. & ed. Mary J. Gregor (Cam
bridge: Cambridge University Press, 1996), 452.
3. Aeschylus, Agamemnon, in Oresteia, trans. Ian Johnston (Arlington, VA: Richer Resources Publica
tions, 2007), lines 461467, available at http://records.viu.ca/~johnstoi/aeschylus/oresteiatofc.htm.
That is why the Erinnies understand revenge to be justice; see the Eumenides, in Oresteia, id. at 198231,
299397. All citations of Aeschylus in the text of this article are to Johnstons edition of the Oresteia.
4. Aristotle, Poetics, trans. Malcolm Heath (New York: Penguin, 1996), 49a.
5. This connection of impartial judgment and general rule is still unknown in the Eumenides. Here, the
impartiality of the judgment is guaranteed by sworn judges (Eumenides, supra note 3, at 582613, 681
710) listening to both sides. We are not informed about the general criteria according to which they
make their judgment after being asked by Athena (Eumenides, supra note 3, at 681710). This is already
considerably different in Sophocles King Oedipus. See Christoph Menke, The Excess of Judgment:
A Reading of King Oedipus, in Tragic Play: Irony and Theater from Sophocles to Beckett, trans. James
Phillips (New York: Columbia University Press, 2009), pt. 1.
6. Orestes, supra note 3, at lines 287289.
7. Put more abstractly, law appears as revenge when a reference to the law cannot prevent it from being
experienced as partisan in an exchange of acts of violent retribution. This can happen on an individual
level as well as in the relation between classes and states.
8. If a man fails in his duty to prosecute the culprit or bar him by proclamation, and is a relative (no more
distant than a cousin) of the deceased on either the fathers side or the mothers, the pollution, together
with the enmity of the gods, should arrive at his own door. (The curse imposed by the law [nmon ara]
turns the edict of heaven against him.) He must be subject to prosecution at the hands of any man who
wishes to take vengeance for the deceased. (Plato Laws 871b). On the following analysis of Oedipuss
curse, see in more detail Menke, supra note 5, at 2236.
9. The most explicit articulation of this decisive move can be found in the chapter The Administration
of Justice in Hegels Elements of the Philosophy of Right, ed. Allen W. Wood, trans. H. B. Nisbett.
(Cambridge: Cambridge University Press, 1991). The step from revenge to legal judgment consists
in the fact that [i]nstead of the injured party, the injured universal now makes its appearance, and it
has its most distinctive actuality in the court of law. Id. at 220. But this precisely means that in legal
judgment the right of self-consciousness of the [affected] party is preserved. Id. at 228. For a legal
judgment is passed in the name of a law that is known and consequently the law of the party con
cerned [das Gesetz der Partei selbst]. Id. at 228.

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10. To put it more exactly, they are interested in the justification of coercion: the concept of law consists in a
reciprocal coercion necessarily in accord with the freedom of everyone under the principle of universal
freedom (Kant, supra note 2, at 389). Coercion is directed at the will; violence is its means.
11. Walter Benjamin, Critique of Violence, in Reflections, trans. Edmund Jephcott (New York: Schocken
Books, 1978), 277300 [hereinafter Critique].
12. Id. at 295.
Die Funktion der Gewalt in der Rechtsetzung ist nmlich zweifach in dem Sinne,
da die Rechtsetzung zwar dasjenige, was als Recht eingesetzt wird, als ihren Zweck
mit der Gewalt als Mittel erstrebt, im Augenblick der Einsetzung des Bezweckten als
Recht aber die Gewalt nicht abdankt, sondern sie nun erst im strengen Sinne und
zwar unmittelbar zur rechtsetzenden macht, indem sie nicht einen von Gewalt freien
und unabhngigen, sondern notwendig und innig an sie gebundenen Zweck als Recht
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unter dem Namen der Macht einsetzt. Rechtsetzung ist Machtsetzung und insofern ein
Akt von unmittelbarer Manifestation der Gewalt. Gerechtigkeit ist das Prinzip aller
gttlichen Zwecksetzung, Macht das Prinzip aller mythischen Rechtsetzung.
Benjamin, Zur Kritik der Gewalt, in Gesammelte Schriften, ed. Rolf Tiedemann & Hermann Schwep
penhuser (Frankfurt am Main: Suhrkamp, 1977), 2:19798.
13. As is true of technology, which Benjamin thus calls a sphere of pure means; Critique, supra note
11, at 289.
14. This has obvious resonances with Max Webers interpretation of law in the context of Western ratio
nalization, and especially with the reformulation of this interpretation in Georg Lukcss Reification
and the Consciousness of the Proletariat, in History and Class Consciousness, trans. Rodney Living
stone (Cambridge, MA: MIT Press, 1971), pt. I. It is of course no way out of this problem to insist
on the normative purpose of law, viz in the form of the idea of justice. For it is precisely the idea
of justice that requires the establishment of law, and the establishment of law is the establishment of a
self-preserving system. Benjamins concept of mythical or fateful violence can thus not be neutralized
by restricting it (in Habermass term) to the facticity of law, as an autonomous system; Benjamins
concept describes the power of the laws normative validity itself.
15. From this perspective, Robert Covers statement quoted at the beginning needs a critical reformula
tion: Thefateful, mythicalviolence of law does not consist in the fact that it also can lead to pain
and death. It rather lies in the fact that a judge articulates her understanding of a text, and as a result,
somebody loses his freedom, his property, his children, even his life. The violence of law is the force
of the legal performance.
16. For the general structure of this dialectics of breaking with and relapsing into myth, see Max
Horkheimer & Theodor W. Adorno, The Concept of Enlightenment, in Dialectic of Enlightenment:
Philosophical Fragments, trans. Edmund Jephcott (Stanford: Stanford University Press, 2002), 134.
See also their remark on law (which can be read as directed against Benjamins early essay): Law is
vengeance which is capable of renunciation. But since this judicial patience is generated by something
outside itself, the longing of the homeland, it takes on human traits, almost a quality of trust, which
point beyond vengeance postponed. In fully developed bourgeois society, however, both are annulled:
with the idea of vengeance longing, too, is tabooedthereby, of course, enthroning vengeance, medi
ated as the self s revenge on itself. Id. at 262.
17. Viz Political Theology: Four Chapters on the Concept of Sovereignty, trans. George D. Schwab (Chicago:
University of Chicago Press, 2004). Cf. Christoph Menke, Mercy and Law: Carl Schmitts Concept
of Sovereignty, in Reflections of Equality (Stanford: Stanford University Press, 2006).
18. See the entry in Grimms Deutsches Wrterbuch (Leipzig: Hirzel 18541960), 3:624:
(1) abrogatio, dejectio de gradu, ademtio muneris: entsetzung eines edlen zu einem unedlen.
MAALER 106a.b; excommunicatio, [...] (2) liberatio urbis, exercitus: damit der kriegsherr,

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wenn er von ihnen, wie die besatzung so wol versehen, auch wie das volk darinnen so be
herzt sei, erfehrt, ein entsetzung darob empfahe. FRONSPERG 1, 96.

(A third meaning of the term is: timor, verecundia, horror, scheu.)


19. Walter Benjamin, Franz Kafka: On the Tenth Anniversary of His Death, in Illuminations, trans.
Harry Zohn (New York: Schocken Books, 1968), 11140. Benjamin calls such a way of enacting law
the gate to justice (id. at 139).
20. Giorgio Agamben, Profanations, trans. Jeff Fort (New York: Zone Books, 2007), 76. This idea is con
nected in Agamben to the figure of the indistinguishability between law and life. That figure takes on a
twofold form in Agamben whose intricate logic would deserve a detailed discussion that I cannot begin
here. I thank Thomas Khurana for advice on this matter.
21. Kant, supra note 2, at 38384.
22. On this Hegelian idea, see Christoph Menke, On the Concept of Recognition: Hegels Early Theory
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of Social Differentiation, Praxis International, Apr. 1992, at 7082. For a further elaboration, see
my Subjektive Rechte: Zur Paradoxie der Form, in Nach Jacques Derrida und Niklas Luhmann. Zur
(Un-) Mglichkeit einer Gesellschaftstheorie der Gerechtigkeit, ed. Gunther Teubner (Stuttgart: Lucius &
Lucius, 2008), 81108 (English translation forthcoming in Constellations).

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